MPAA-RealDVD Trial Portends Legality of DVD Copying

SAN FRANCISCO — The Motion Picture Association of America and RealNetworks square off in a federal courtroom here Friday to determine the legitimacy of the Seattle-based tech company’s DVD copying software.

The MPAA, which fears losing complete oversight of the DVD as the music industry lost control of the CD, is challenging RealNetworks’ $30 software allowing users to make backup copies of DVDs on their hard drives.

Hollywood claims the RealDVD software, which a judge ordered removed from the market last year pending the litigation’s outcome, violates the Digital Millennium Copyright Act prohibiting the circumvention of encryption technology. The studios add that RealDVD breaches a contract with the DVD Copy Control Association, which licenses the CSS code to DVD players to unscramble discs.

For its part, RealNetworks claims a loophole in the contract with the DVD Copy Control Association. A California judge upheld the legality last year of a $10,000 high-end DVD home copying machine, made by Kaleidescape, under a claim the DVD Copy Control Association contract did not require, as the studios alleged, that a DVD be in the machine to play back the movie. RealNetworks makes the same argument.

(The Kaleidescape case, however, which is pending appeal, did not rule on whether Kaleidescape breached DMCA anti-circumvention measures. The studios allege it is preposterous to assert that copies of its DVDs are allowed. RealNetworks claims they can be made for fair use – yet case law suggests the DMCA does not allow fair use if encryption technology is circumvented.)

All of which means the lawsuit represents Hollywood’s worries that RealDVD and other fledgling DVD-copying services might ruin the market for DVDs. The U.S. courts have not squarely ruled on whether it is legal to copy an
encrypted DVD for personal use.

The studios don’t want to go the way of the music industry, which years ago lost much control of the unencrypted CD to peer-to-peer file-sharing services. Even the technologically unsophisticated can maneuver technology to burn CDs with ease.

Hollywood is already reeling from open-source DVD decryption software that is free on the internet, and says it’s losing billions in sales because of BitTorrent tracking services like The Pirate Bay that allow users to locate decrypted movies and other online content for free.

About a half dozen witnesses are expected to testify during a three-day mini trial here in U.S. District Court before Judge Marilyn Hall Patel beginning Friday morning. Patel is the same federal trial judge to rule against the original Napster.

Witnesses for RealNetworks (.pdf) include: Rob Glaser, the company’s founder and CEO; Elizabeth Coppinger, a company vice president, and Matthew Bishop, a computer scientist and the University of California at Davis.

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